KENTUCKY CHILD SUPPORT HANDBOOKMILITARY

Section 13.000 CSHTL No. 229 7/10/08

13.010 Authority………………………………………………………………………………………..1

13.020 Location of Military Personnel …………………………………………………………………1

13.030 Service of Process on Military Personnel ………………………………………………………5

13.040 Military Establishment of Paternity…………………………………………………………….8

13.050 Military Support Order Establishment ..………………………………………………………10

13.060 Military Medical Support Establishment……………………………………………………...11

13.070 The Scope of the Servicemembers Civil Relief Act …………………………………………..13

13.080 Military Enforcement ………………………………………………………………………….15

13.090 Web Site Resources ……………………………………………………………………………20

13.010 AUTHORITY

PERSONAL RESPONSIBILITY AND WORK OPPORTUNITY RECONCILIATION ACT OF 1996 (PRWORA), PUBLIC LAW (P.L.) 104-193.

SOCIAL SECURITY ACT (SSA) Title IV-D, Sections 452, 454, 465, 466, 468.

UNITED STATES CODE (USC) Title 5 Chapter 5, Section 552.

UNITED STATES CODE (USC) Title 42 Chapter 7, Sections 654, 665, 666.

SERVICEMEMBERS CIVIL RELIEF ACT (SCRA) Title 50 U.S.C. Chapters 501-596.

UNIFORM INTERSTATE FAMILY SUPPORT ACT (1996) UIFSA.

CODE OF FEDERAL REGULATIONS (CFR) 5 Part 581, 32 Part 54, 42 Part 433, 45 Parts 74, 301, 302, 303.

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KENTUCKY REVISED STATUTES (KRS) 403, 407.

13.020 LOCATION OF MILITARY PERSONNEL

Authority: 5 USC 552, 45 CFR 303.

The federal Office of Child Support Enforcement (OCSE) maintains regulations controlling locate activity in all IV-D cases, including cases involving the military. The regulations do not specifically address military cases, but are directly applicable to cases involving the military.

45 CFR 303.3 defines “location” as “information concerning the physical whereabouts of the noncustodial parent, or the noncustodial parent’s employer(s), other sources of income or assets, as appropriate, which is sufficient and necessary to take the next appropriate action in the case.”

Locate resources include:

Kentucky Network (KY-NET), KY-Information Management System (KYIMS)

Interstate Data Exchange Consortium (IDEC)

Financial Institution Data Match (FIDM)

Federal Case Registry (FCR)

Federal Parent Locator Service (FPLS)

JusticeXchange - (https://www.justicexchange.com/jxp/) (A user ID and password are required for this website.)

Credit bureau records

Relatives and friends of the noncustodial parent

Current and past employers and unions of the noncustodial parent

Local telephone companies

U.S. Postal Service

Kentucky Department of Corrections

Criminal records

Federal locate regulations require that within “no more than 75 calendar days” of a IV-D agency’s decision that locate action is needed, the agency must access all appropriate locate resources, including the FPLS. The federal locate regulations’ timeframes apply to non-military and military cases.

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When locate attempts fail, federal regulations require the IV-D agency to repeat locate efforts on the case. Repeating locate efforts is required either quarterly or immediately upon the receipt of new information that may help the locate effort. For example, if a custodial parent contacts the IV-D office with updated address information, upon receiving the new information, the IV-D office must repeat locate activities immediately. However, there must be “adequate identifying and other information” in the case to justify repeating the locate efforts including: Social Security number (SSN); date of birth; last known complete address; last known employer; or the name and address of a parent, another relative, or a friend.

Federal regulation 45 CFR 303.11 allows the state IV-D agency to close a case when the noncustodial parent’s location is “unknown and cannot be identified after diligent efforts using multiple sources, in accordance with 45 CFR 303.3, all of which have been unsuccessful ….” The amount of time that the IV-D office must pursue locate efforts prior to closing a case depends upon the amount of information that the IV-D office has concerning the noncustodial parent.

If the IV-D office has sufficient information to initiate an automated locate effort (i.e., the noncustodial parent’s name and SSN), the case can be closed after three years of unsuccessful locate efforts. If the IV-D office does not have sufficient information on the noncustodial parent to initiate an automated locate effort, the case can be closed after one year of unsuccessful locate efforts.

Expanded Federal Parent Locator Service

45 CFR 303.70 allows the State Parent Locator Service (SPLS) to request information from the FPLS. The expanded Federal Parent Locator Service is the most important IV-D locate tool in military cases. In addition to many locate resources not available directly to the local IV-D office or SPLS; the expanded FPLS includes an exclusive interface with the federal Social Security Administration’s (SSA) database.

One of the services that the SSA provides the FPLS, is supplying or correcting, missing or inaccurate SSNs. It may be necessary to contact the FPLS in order to obtain a military member’s SSN before initiating specific locate activity with the military. However, an individual IV-D employee cannot request such services directly from the FPLS. According to federal regulations, only an SPLS (or any additional IV-D offices designated by the SPLS) may submit requests for information to the FPLS.

NOTE: Any request for wage or address information for an individual believed to be employed, or believed to be receiving benefits from the Department of Defense (DOD) is required to be submitted to SPLS through a KASES referral.

It is mandatory that child support staff notify the appropriate SPLS worker by mail message to request DOD information when they send a regular referral requesting DOD information. In order to receive a prompt response to the request, it is imperative that child support staff requesting DOD information inform the SPLS worker in the mail message that the request is “for military information only.” If a regular referral is made to SPLS without an appropriate mail message, the SPLS worker may not realize that military information is all that is needed and may choose to use resources other than FPLS, thus delaying location of the noncustodial parent.

Each month, the FPLS accesses records of the DOD for civilian employees of the DOD and military retirees. The FPLS accesses the records of the Veterans Administration (VA) on a weekly basis. The VA provides the address an individual has designated for receipt of VA benefits. Unlike the

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WorldWide Locator Services, the FPLS can obtain and disclose both duty station (work address) and home addresses of all military and civilian DOD employees.

NOTE: An SSN must be obtained BEFORE sending an employment verification request to a military branch, because the military will NOT respond to the request if an SSN is not available. A request without an SSN will be returned unprocessed. For the best results, always use the military member’s full name and SSN in all locate actions involving the military.

Due to the nature of military service, the residential address and duty station for members of the military frequently change. In addition, due to national security concerns, there are instances when the military is prohibited from disclosing the residential or work address for a given member. It is becoming more difficult to obtain address information from the military. In 2003, the U.S. Army’s WorldWide Locator Service stopped providing address information to the general public (including state and local IV-D offices).

Local military resources provide locate information that is more limited than national military resources. If staff can narrow the location of the military member to a particular installation, the local military resource may be the quickest.

The best local military locate resource is the military installation. An installation usually maintains a central locator office. Staff contact an installation’s locator office to obtain the service member’s military unit address. The telephone number for an installation’s locator office is available through the installation’s information operator. In order to obtain the individual’s military unit address, staff must have that person’s full name and SSN. The individual’s military unit address is important because it allows staff to contact the individual and, if the member fails to cooperate, his or her commanding officers.

The military’s legal assistance attorneys are another local locate resource. Most large military bases maintain legal assistance offices. Their duties include assisting spouses and dependent children in obtaining the military service member’s military address.

Recruiting offices may also provide locate information, but they are not the best starting point. Cities often have multiple recruiting offices. The caseworker must know which recruiting office enlisted the military member. The recruiter’s information is also very time sensitive, therefore, the recruiting office will only have records regarding the member’s initial duty station. If the member enlisted more than a year previous to a request, locate information from the recruiting office will not be very helpful.

WorldWide Locator Service

Each military branch maintains a WorldWide Locator Service and, except for the Army, all branches provide IV-D offices with locate information free of charge. For active duty members, the address information that the WorldWide Locator Service provides is the member’s unit address, which may include an APO (Army Post Office) or FPO (Fleet Post Office) address if the member is overseas. To determine the actual geographic location of an APO or FPO address, contact the U.S. Postal Service (www.usps.com) or the postal offices at the nearest military installation.

In addition to the military member’s full name and SSN, if the caseworker knows the member’s date of birth, rank, and location and time period of the member’s last duty station, that information should also be provided to the WorldWide Locator Service. In deciding when to contact a WorldWide

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Locator Service, staff should keep in mind that military records may run up to 90 days behind reassignments and most reassignments occur in the summer.

Usually the member’s military address is more useful than the member’s home address. The military member may be away from his or her home address for several months at a time, but the member is rarely away from his or her military address for more than two weeks at a time. The following is contact information for the WorldWide Locator Service for each military branch:

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Air Force Army

AFPC/MSIMDL Army Worldwide Locator550 C Street, West, Suite 50 US Army Enlisted Records & Evaluation CenterRandolph AFB, TX 78150-4752 8899 East 56th Street(210) 565-2660 Indianapolis, IN 46249-5301

(703) 325-3732

Navy Marine Corps

Bureau of Navy Personnel Headquarters, U.S.M.C.Attn: PERS-324 Personnel Mgmt. Support Branch MMSB-175720 Integrity Drive 2008 Elliot RoadMillington, TN 38055 Quantico, VA 22134-5030(901) 874-3070 (703) 784-3942

Coast Guard

Commandant, US Coast Guard2100 2nd Street SWWashington DC 20593-0001(202) 267-1340

NOTE: The DOD Military Mailing Addresses Web site is located in subsection 13.090, Web Site Resources.

If staff need a military member’s home address, direct the request to the installation personnel officer for the member’s duty station. If necessary, a IV-D office may also use the Freedom of Information Act (FOIA), 5 USC 552a, to obtain the home address of a military member. All branches except the Army will accept the written FOIA request for this purpose. Direct a FOIA request for a service member’s home address to the General Counsel for the appropriate branch of the military.

NOTE: A “Sample Letter to Request Home Address” and a “Sample Freedom of Information Act Request for Pay Information” are included in “A Caseworker's Guide to Child Support Enforcement and Military Personnel” located in subsection 13.090, Web Site Resources.

If there is a need to locate a military member who is incarcerated in a military brig, contact the legal office or military police of the member’s last duty station. To assist them with their search, provide an approximate date of the member’s conviction.

The following Web site allows the user to input military address information and will provide the actual location of the facility/base/embassy. This site also contains information on APO/FPO, etc. abbreviations: http://www2.apobox.com/zip_restrictions.php.

For more information regarding location, see KCSH Section 7.000, SPLS.

13.030 SERVICE OF PROCESS ON MILITARY PERSONNEL

Authority: Servicemembers Civil Relief Act (SCRA) 50 U.S.C. 501-596, UIFSA, KRS 407.

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The first step in establishing or enforcing a support obligation against a military member is location of the member; the next step is obtaining jurisdiction. Obtaining jurisdiction over military members is similar to obtaining jurisdiction over civilians, but military service creates other issues. Personal jurisdiction over the petitioner usually is not an issue. By bringing the legal action, the petitioner is consenting to the tribunal’s jurisdiction over him or her.

Jurisdiction based on physical residence is especially important in an interstate case. Every state has enacted the Uniform Interstate Family Support Act (UIFSA). In both the long arm provision of UIFSA, as well as its definition of “continuing, exclusive jurisdiction,” the Act refers to “residence.” A tribunal may decide that a military member has two residences: his or her state of legal domicile and the state where he or she is physically stationed.

UIFSA and KRS 407.5201 authorize a tribunal to exercise jurisdiction over a nonresident if:

the individual is personally served with a citation, summons or notice within the forum state;

the individual submits to the jurisdiction of the forum state by consent, by entering a general appearance, or by filing a responsive document (pleading) having the effect of waiving any contest to personal jurisdiction;

the individual resided with the child in the forum state;

the individual resided in the forum state and provided prenatal expenses or support for the child;

the child resides in the forum state as a result of the acts or directives of the individual;

the individual engaged in sexual intercourse in the forum state and the child may have been conceived by that act of intercourse;

the individual asserted parentage in the putative father registry maintained in the forum state by the appropriate agency (CHFS); or

there is any other basis consistent with the constitutions of the forum state and the United States for the exercise of personal jurisdiction.

In order to obtain jurisdiction over an individual, due process under the United States Constitution also requires notice of the proceeding. “Process” is a legal document that compels an individual (or entity) to appear in court or to comply with a demand by a court. “Service” of process is the delivery of the document to the individual to notify him or her of a claim or charge against the individual, or to inform the individual of specific acts that he or she is required to perform.

Military members may live on an installation, but the majority live in the neighboring communities surrounding the installation. These members can be treated as any other person subject to a state's service of process procedures and jurisdictional requirements.

Methods for service of process include mail, voluntary acceptance of service, and personal service by a civilian authority, depending upon the type of action that is being brought. Under most state laws, establishment of an initial support obligation requires voluntary acceptance of service or personal service by an authorized official. If a military member resides on a military installation, the member may be served with process. However, there are some limitations that apply.

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Staff may attempt to contact the military member or his or her commander and request the voluntary acceptance of service. The consequences of failing to abide by a support order, which could lead to an order to show cause for contempt, can have much greater significance to a military member stationed overseas. That is especially true if the military member is required to return to the United States in order to attend civil proceedings.

Many enforcement actions do not require personal service. Service by mail to the noncustodial parent’s military address is acceptable by a first class letter, or certified or registered letter, return receipt requested, depending upon the requirements of the forum state. Military facilities and naval craft have post offices, therefore, “return receipt requested” service is available.

If the remedy requires personal service, e.g. an establishment action or a contempt action, staff may have more difficulty obtaining service. Military installations in the United States fall within one of four categories of legislative jurisdiction: exclusive, partial, concurrent, and proprietorial jurisdiction.

The following distinctions are very important with regard to serving state process on military members located on the installations:

Exclusive Federal Jurisdiction with No State Reservation for Service of Process: There are a few exclusive federal jurisdiction installations where a state official cannot serve process on the installation. The installation’s point of contact for service of process will determine if the military member wishes to voluntarily accept service of process. The member will be advised to consult with a military or private attorney about the legal effect of voluntary acceptance. If the member decides not to accept service, the authority requesting service will be informed; along with the explanation that exclusive federal jurisdiction prevents service by state authorities on the military installation.

Partial Jurisdiction: On partial jurisdiction installations, the state has retained the power to apply its laws in some areas while in remaining matters, federal law controls. On virtually all partial jurisdiction installations, states have retained the power to serve process.

Concurrent and Proprietary Jurisdiction: If the military installation is under concurrent or proprietary jurisdiction, the state has the right to serve process on the installation according to state laws. A sheriff or other civilian official may enter the installation, contact the local military police, identify the person to be served, and attempt service. The installation’s point of contact for service of process will facilitate service using the procedure put in place by the installation or garrison commander.

As stated previously, contacting a military member's commander may assist in obtaining voluntary acceptance of service. When communicating with the commander by mail, ask the officer to provide the military member the opportunity to accept service. Enclose with the request, the summons, a copy of the complaint or motion, and a return of service for the commander or other official to complete. In the letter to the commander, staff should mention the possible negative effects if the member fails to accept service. The military commander cannot serve process for IV-D staff. But, the military commander can, however, discuss with the member the potential consequences of the member’s failure to take care of civilian proceedings concerning child support, which may include adverse effects on a military member's readiness.

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Service of process for federal courts has fewer limitations than service of process for state courts. Regardless of whether the installation has exclusive or concurrent federal jurisdiction, civil officials are permitted to serve federal process. The only restrictions are those restrictions that the installation or garrison commander imposes.

As with United States installations, service of process by mail to overseas installations is an easy and efficient method of service. Military postal clerks follow the same guidelines as the United States Postal Service. Although the address may be an APO or FPO, it is still U.S. mail, and again, certified mail and “return receipt requested” services are available.

If staff do not receive a return receipt for service sent to an overseas installation, prepare a second set of documents and place them in an envelope addressed to the military member, with the return receipt affixed and postage paid. Place this envelope into a larger one and address the outside envelope to the military postal officer for the APO or FPO where the military member is located. Include a memo to the postal official that details previous efforts to obtain a return receipt, and ask that proper postal procedures be followed to deliver the envelope to the military member and to send the return receipt to the caseworker.

NOTE: Staff may track mail status with the certified mail number at the United States Postal Service Web site, www.usps.com.

Alternative methods are available depending on the specific state and foreign law involved. For detailed information on service of process in overseas locations, see the Department of State Web site at www.state.gov.

For more information regarding service of process, see KCSH Subsections 9.050 Administrative Establishment, 9.110 Judicial Establishment, and 9.130 Entering An Administrative Or Judicial Child Support Order On KASES.

13.040 MILITARY ESTABLISHMENT OF PATERNITY

Authority: SCRA 50 USC 501-596, 45 CFR 303.

The federal establishment of paternity regulations at 45 CFR 303.5 require the IV-D office to establish paternity in one of two ways:

By offering the alleged father the opportunity to voluntarily acknowledge paternity; or

By bringing a legal action, judicially or administratively, to establish paternity in accordance with state law. The IV-D office does not pursue paternity establishment in public assistance cases where “good cause” exists.

NOTE: Good cause is an exception to the public assistance recipient’s obligation to cooperate with the IV-D office to establish paternity. A finding of good cause means that IV-D efforts to establish paternity, or to establish and enforce a child support obligation cannot proceed, without a risk of harm to the custodial parent (or caretaker relative) and child. For more information on good cause, see KCSH Section 4.000, Good Cause.

If any party to a contested paternity case requests genetic testing, federal regulations require the IV-D agency to require all parties to submit to testing. Paternity establishment regulations require the IV-D

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agency to seek a default order in a case where the defendant has failed to respond after being served with the appropriate paperwork (i.e., summons and petition seeking paternity establishment). Before entering a default paternity order on a military member, it is important to comply with the Servicemembers Civil Relief Act (SCRA), which is explained in subsection 13.070, The Scope of the Servicemembers Civil Relief Act.

Federal regulations require the IV-D agency to establish paternity when necessary and require the use of local law and procedures in establishing a support order. The IV-D agency uses local laws, procedures, and child support guidelines to establish the support order. Also, the IV-D agency uses local laws and procedures to decide whether to bring the action judicially or administratively. If the parties acknowledge paternity, regulations require the IV-D agency to obtain a support order based upon that acknowledgment.

Within 90 calendar days of locating the alleged father or noncustodial parent, federal regulations require the establishment of a support order or, at a minimum, the service of process needed to begin the establishment process. If service of process cannot be obtained within this timeframe, the IV-D agency documents that it has made a diligent effort to serve process, in compliance with state IV-D guidelines.

The Role of the Military Commander in Paternity Establishment

Military regulations severely limit the ability of a commander to become involved in civil matters. This is especially true in paternity establishment when no court order exists. In paternity establishment cases, a commander’s role is limited to:

Informing a military member of the claim and the legal and moral obligations

Referring the member to an attorney

Providing complete, accurate, and timely information to the person or agency bringing the paternity action

The voluntary cooperation of the military member will expedite the establishment of paternity. First, try to contact the military member. Inform the member of the paternity allegation and of the process for voluntarily acknowledging paternity. If the member denies paternity, advise the member of the availability of genetic testing.

NOTE: Staff need to remember that a threatening tone with the military member or other military personnel will not help, but a respectful, factual statement of the process and its possible negative consequences is appropriate.

When direct contact with the military member is unsuccessful, the IV-D office may request that the commander speak with the member to encourage the member to appear for genetic testing. This request should be in writing and explain the consequences of a failure to appear for the testing. It is important to remember that the local tribunal has the authority to force compliance with its order. Although the military commander cannot force a subordinate to appear for genetic testing, a court can use its contempt powers to enforce an order requiring the member to appear for genetic testing.

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NOTE: In cases where the military member verbally admits paternity, but refuses to provide financial support, the commander is limited to referring that individual to a legal assistance attorney within the Judge Advocate General (JAG) office.

For more information on paternity, see Prosecutors’ Handbook Section 13.000/Operations’ Manual Section 16.000, Paternity.

13.050 MILITARY SUPPORT ORDER ESTABLISHMENT

Authority: SSA Section 466 (42 USC 666), 45 CFR 302 and 303.

SSA Section 466 and 45 CFR 302 and 303 require that IV-D agencies secure support for children from “legally liable” persons. Child support obligations must be formally established using appropriate state laws and legal processes. Obligations must be established in IV-D cases for children for whom an obligation has not previously been established through the administrative or judicial process.

The IV-D office can turn to the military chain of command for limited assistance before a support order exists in a case. In cases where the military member is failing to cooperate with the order establishment process, it is appropriate for the IV-D office to notify the member’s commander regarding the alleged financial nonsupport.

In response to this notification, the commander must meet with the member to determine the validity of the allegation. As part of the commander’s inquiry, he or she will take steps to stop the member’s receipt of dependent-based pay, e.g., Basic Allowance for Housing (BAH), which is not going to meet the needs of these dependents. After meeting with the member, the commander must respond to the IV-D office.

Determining Income for a Member of the Military

The military chain of command is limited in its ability to provide assistance in initiating the payment of child support. The establishment of an appropriate support obligation relies upon a full disclosure of the member’s income. In the military, a member’s basic pay is usually not a complete picture of that person’s income.

Military pay is comprised of basic pay and available allowances: BAH, Basic Allowance for Subsistence or Separate Rations (BAS or Sep Rats), special skill pay (e.g., flight pay), and bonuses (e.g., reenlistment). To determine the military member’s true income, the IV-D office needs a resource that details the member’s basic pay and all allowances and special pay. For all branches of the military, this information is provided on the member’s Leave and Earnings Statement (LES).

NOTE: A Web link to the Defense Finance Accounting Service (DFAS) LES form is in subsection 13.090, Web Site Resources.

The LES is a comprehensive document that provides information critical to the establishment process. The LES has 78 separate fields that include, among other things, the following information:

Member’s name and SSN

Each type of pay the member receives (Base, Special, Incentive and Bonus)

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All allowances and entitlements the member earns

Member’s leave balances

Number of dependents the member claims

Member’s declared state of domicile

Staff must learn how to decipher the LES information in order to accurately determine a military member’s complete income. If the member does not voluntarily provide the IV-D office with a copy of a current and complete LES, use a FOIA request to obtain a copy, or the IV-D attorney can serve the member with a Request for Production of Documents. Direct the request to the DFAS in Cleveland, Ohio. The DFAS contact information is in subsection 13.080, Military Enforcement.

NOTE: A “Sample Freedom of Information Act Request for Pay Information” is included in, “A Caseworker's Guide to Child Support Enforcement and Military Personnel,” located in subsection 13.090, Web Site Resources.

Financial Information

The DFAS documents military pay and allowance information for individual military members, as well as DOD civilians and retirees. This is the single point of contact where pay and allowance information needed for child support actions may be obtained. However, the DFAS does not respond to wage verification requests, because the same information is available from the FPLS.

Staff may obtain pay and employment information from DFAS through a request to the FPLS, which includes the National Directory of New Hires (NDNH) and the Federal Case Registry (FCR). The DFAS can also provide historical pay information and a physical address of military personnel. Although the DFAS Cleveland is the centralized clearinghouse for child support withholdings, there are DFAS centers throughout the country, servicing the payroll for the military branches.

NOTE: An SSN must be obtained BEFORE sending an employment verification request to a military branch, because the military will NOT respond to the request if an SSN is not available. A request without an SSN will be returned unprocessed.

General military pay information is available on the DFAS Web site. Information on military pay and allowance amounts is available to the public. Data on current pay entitlements, housing allowances, special pay (hazardous duty, language proficiency, etc.), cost of living adjustments, drill pay for reservists, etc., are all available on the DFAS Web site. Knowing the pay entry basic date (or the number of years of service), pay grade, duty location, military occupational specialty, and other aspects of a military member's service is necessary for an exact determination of military pay for a specific individual. These pay resources can be helpful in making estimates and gaining a general idea of the pay and allowances being received.

NOTE: The DFAS Web site link is located in subsection 13.090, Web Site Resources.

For more information regarding establishment of support, see KCSH Establishment Section 9.000.

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13.060 MILITARY MEDICAL SUPPORT ESTABLISHMENT

Authority: 45 CFR 303.

“Securing and Enforcing Medical Support Obligations” is codified in 45 CFR 303.31. Unless the custodial parent and child have satisfactory insurance other than Medicaid, in a new or modified support order, the IV-D office must petition the court or administrative agency to include health insurance that is available to the noncustodial parent at reasonable cost. The regulation requires the agency to petition the court or administrative authority for medical support, regardless of whether health insurance at reasonable cost is actually available at the time the order is entered or whether modification of the noncustodial parent’s current coverage to include the child is immediately possible.

Health insurance is considered “reasonable in cost” if it is available through the parent’s employer or other group provider. Therefore, members of the military are expected to provide health insurance coverage to their dependents, unless the custodial parent and child have health insurance other than Medicaid or KCHIP, because the United States makes health insurance available to the dependents of military members.

If health insurance is ordered, a modification proceeding is not required. If health insurance was not ordered, a request to modify can be requested by either party, or CHFS, if the child receives Medicaid. When insurance coverage is ordered and provided by the noncustodial parent, the IV-D office must give the custodial parent and Medicaid agency, if applicable, the information needed to access this insurance. If the noncustodial parent is ordered to provide health insurance and this insurance is available but not provided, then the IV-D office must take steps to enforce that coverage.

The OCSE issued Dear Colleague Letter (DCL) 08-07, dated March 7, 2008, which initiated a policy change that expanded the eligibility criteria to qualify for dependent child status for children of military members. The new criteria authorize a determination of dependency for military benefits, including health care for dependent children, upon the submission of a birth certificate and a notarized voluntary acknowledgement of paternity form, which in Kentucky may be the Declaration of Paternity (Form VS-8), the Voluntary Acknowledgement of Paternity (Form VS-8B) or the Three-Way Paternity Acknowledgement (Form VS-8C).

NOTE: Under the previous DOD policy, out-of-wedlock children were considered dependents for health care coverage only, pursuant to a judicial determination of paternity, and/or if the child was a part of a military member’s household that was contributing more than half the cost of the child’s support.

The new policy will allow the custodial parent of a child born out-of-wedlock to go to the nearest military installation with an ID card issuance site (a specific service branch affiliation is not required) to determine dependent child status. Once the installation military technician validates the voluntary acknowledgement of paternity form, the documents are then scanned into the DEERS (Defense Enrollment Eligibility Reporting System) database and the child(ren) is enrolled to receive coverage. A child may be enrolled at any time prior to his or her 21st birthday. Staff can check the DOD DEERS site at http://www.dmdc.osd.mil/rsl/owa/home to search by city, state, ZIP Code and country for the closest DEERS ID card issuance site.

NOTE: A judicial order with accompanying paperwork as required by the installation continues to be an acceptable method of enrolling a dependent child in DEERS. The VS-8, VS-8B or VS-8C and a

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birth certificate are supplemental to and not a replacement for other means of enrolling a dependent child in DEERS.

To receive medical care from the military through TRICARE (formerly CHAMPUS), an individual must be enrolled in DEERS. To enroll family members or update DEERS records, noncustodial parents must complete an Application for Department of Defense Common Access Card and DEERS Enrollment (DD Form 1172) and provide other documentation, such as marriage, birth, or death certificates, Social Security numbers, separation papers (DD Form 214), Medicare cards, etc.  Each family member's eligibility record must be updated separately when changes occur.  

NOTE: If the noncustodial parent is not available, family members can add or delete family members from DEERS with a notarized DD Form 1172 or a Power of Attorney.

To obtain information as to whether someone is enrolled in DEERS, contact:

Defense Manpower Data Center ATTN: CA99 400 Gigling Road Seaside, California 93955-6771

1-800-538-9552

NOTE: Include the name and SSN of the military member, as well as the name, SSN and date of birth of the dependent. Even if the child is already enrolled in DEERS, the child may need to obtain a military I.D. to gain access to medical care facilities on base.

Biological and Adopted Children

Unmarried biological and adopted children remain eligible for TRICARE: to age 21 even if the sponsor gets divorced or remarried.

to age 23 if enrolled in college full-time and the sponsor continues to provide 50% of the child's financial support. Coverage ends on the child's 23rd birthday or at the end of that school year, whichever comes first.

A child may be covered beyond the normal limits (age 21 or 23 as noted above) if he or she is severely disabled and the condition existed prior to the child's 21st birthday, or if the condition occurred between the ages of 21 and 23 while enrolled in college.

Children placed in the custody of a service member or former service member, either by a court or by a recognized adoption agency in anticipation of legal adoption by the member, may be eligible under certain conditions.  Staff may contact the closest ID card office (Web link in previous paragraph in this subsection) for more information.Learn more about enrolling a child in DEERS.

For more information regarding establishment of medical support, see KCSH Establishment Subsection 9.040.

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13.070 THE SCOPE OF THE SERVICEMEMBERS CIVIL RELIEF ACT

Authority: PRWORA, SCRA 50 U.S.C. Chapters 501-596.

The Soldiers’ and Sailors’ Civil Relief Act (SSCRA) was originally enacted in 1918 and reenacted in 1940. In 2003, the SSCRA was superseded by the Servicemembers Civil Relief Act (SCRA). The primary purpose of the SCRA is to protect members of the military during their service and is not intended to be the answer to all military members’ legal problems. The SCRA provides for the suspension of certain civil proceedings when a military member's service affects his or her civil rights. The SCRA is also designed to protect the rights of individuals who may have a cause of action against a military member.

The SCRA applies to military personnel, including reservists, who are on active duty military service. A limited exception to this rule is that members of the National Guard are also covered by the SCRA when a state governor calls them to active service authorized by the President or the Secretary of Defense for a period of more than 30 consecutive days for purposes of responding to a national emergency declared by the President and supported by federal funds. The SCRA does not apply to DOD civilians, contract employees, and military retirees; and most of its provisions do not apply to military dependents directly.

NOTE: The SSCRA only applied to judicial proceedings, but the SCRA applies to both judicial and administrative proceedings.

Stay of Civil Proceedings Under the SCRA

A “stay” means that proceedings are put on hold for a certain period of time. The stay provisions of the SCRA apply to both judicial and administrative hearings and proceedings. A request for a stay of proceedings may be made at any point of the proceeding, provided it is made during the member’s service or within 90 days thereafter.

In determining whether a military member is entitled to a stay under the SCRA, the court or administrative tribunal must ask:

Is the member in active military service? To be eligible for a stay under the SCRA, a military member must be in military service, and involved in judicial or administrative proceedings as a defendant.

Do military duty requirements materially affect the member’s ability to appear at the proceeding? A court or administrative tribunal must grant the stay under section 202 of the SCRA if the member is unavailable for the proceeding and the member’s military duty requirements materially affect the member’s ability to appear. Any stay under section 202 applies to proceedings related to obligations that arose both before the member joined the service and during the member’s service. For example, it would apply to a contempt action for a support order issued prior to military service, as well as to a paternity proceeding that was initiated during the member’s service.

As a result of PRWORA, it is more difficult for a member to establish unavailability. PRWORA required the military services to promulgate regulations to facilitate military members taking leave to appear in court for child support and paternity actions.

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Default Judgments Under the SCRA

A default judgment is a judgment entered when a defendant fails to make an appearance at a proceeding, after service of process. Section 201(b) of the SCRA provides that, prior to the entry of a default judgment in a case where the defendant does not make an appearance, the plaintiff must file an affidavit with the tribunal, setting forth facts showing either that the defendant is not in military service or that the plaintiff is unable to determine whether the defendant is in military service. If the affidavit states that the defendant is not in military service, it must include facts that support this allegation. The Defense Manpower Data Center (DMDC) maintains a Web site (located in subsection 13.090, Web Site Resources) that allows users to verify if an individual is active in the military. DMDC no longer requires users to complete an on-line application.

If the plaintiff files an affidavit showing that the defendant is not in the military, the tribunal can enter a default judgment. If the child support agency fails to file the required affidavit, the tribunal should not enter a default judgment. If a default judgment is improperly entered, the judgment is voidable (capable of being voided) and can be reopened by the defendant later if certain conditions are met. This applies to all judicial and administrative civil proceedings.

Section 206 of the SCRA provides for statutes of limitations for the time that a person is in military service. The statutes of limitations apply whether the military member is a defendant or a plaintiff in the proceeding. The cause of action may have accrued either prior to, or during, military service. The one exception is that section 206 does not apply to internal revenue laws.

Section 207 of the SCRA can impact interest that has been ordered on an obligation for unpaid child support, if the obligation was incurred prior to the member’s entry into military service. But, section 207 does not require a child support agency to initiate anything on behalf of the member. It is the military member’s responsibility to contact the agency or tribunal.

13.080 MILITARY ENFORCEMENT

Authority: 42 USC 665, 45 CFR 303.

45 CFR 303.6 requires the IV-D office to monitor compliance with support orders, note the date of any noncompliance, and take appropriate action to enforce support obligations. The primary enforcement tool is income withholding.

In addition to income withholding, 45 CFR 303.6(c)(2) requires states to take other appropriate enforcement action within 30 days of identifying a delinquency. However, this 30-day timeframe does not apply if the particular enforcement remedy requires additional service of process. When needed, the service of process must occur within 60 days of identifying the delinquency. Follow-up enforcement action must occur within 60 days of identifying the delinquency or locating the noncustodial parent, whichever occurs later.

In addition to initiating income withholding and other “appropriate enforcement action,” states must submit delinquent cases, meeting the eligibility requirements, for state and federal income tax refund offset. The IV-D agency is also required to examine the reasons behind unsuccessful enforcement efforts and to reinstate enforcement action, when appropriate, in the future.

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Federal regulations and the rules of each military branch require members to honor the terms of their child support orders. These military rules give commanding officers the authority to punish members who fail to support their dependents.

Fax Gateway for Income Withholding Orders

The DFAS provides a fax service for the receipt of child support income withholding orders. The Fax Gateway is an automated process. Faxed documents post directly to the DFAS Web-based imaging system and can be viewed and processed directly by DFAS paralegals. A faxed income withholding order will receive the same consideration as a document sent by mail.  Child support staff may use either of the following two fax numbers to send income withholding orders for child support to DFAS Garnishment Operations:

DFAS Fax Gateway, toll-free:  (877) 622-5930DFAS Fax Gateway, commercial:  (216) 522-6960

No cover sheet is necessary, but be sure to include a phone number if a problem is encountered. The fax line is dedicated for income withholding orders.  Supporting documents may be included and will be available for viewing by the DFAS paralegals. The fax line may also be used by attorneys who cannot submit through the state system.  Fax each order individually.  Faxing multiple income withholding orders in one batch may not reach the correct paralegal and will slow processing. Include the full SSN for the noncustodial parent.

Staff may use the fax line for sending income withholding orders for employees of civilian agencies such as the Department of Energy or the Environmental Protection Agency.  The fax line is only to be used for sending income withholding orders and accompanying documents.  Do not fax requests for verification of employment, the National Medical Support Notice or court orders.

Staff may also mail income withholding orders for child support to the following address.  Do not mail an income withholding order that has been faxed to the Fax Gateway.   DFAS Cleveland CenterDFAS-HGA/CLP.O. Box 998002Cleveland, OH  44199-8002

(888) 332-7411 (customer service)

Questions regarding the Fax Gateway: (216) 204-1667.

All National Medical Support Notices (NMSNs) (Form CS-72) for civilian employees of the Army should be sent to the Army Benefits Center-Civilian (ABC-C), located at Fort Riley, KS, regardless of the employee's human resources servicing region. The central location will expedite the process by ensuring that the NMSN reaches the correct office. This address is for the National Medical Support Notice only. 

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The mailing address is: Army Benefits Center-Civilian303 Marshall AvenueFort Riley, KS 66442-5004 

FAX: (785) 239-0020 (The ABC-C is willing to receive the NMSN via fax, if that is acceptable to state child support agencies.)

NOTE: Continue to send income withholding orders for DOD civilians to the DFAS Cleveland Center address or Cleveland fax number listed previously.

Send income withholding orders when attaching the pension or annuity of federal government civilian employees to:

Office of Personnel Management Court Ordered Benefits BranchP.O. Box 17Washington, DC 20044-0017

Telephone: (202) 606-0222FAX: (202) 606-7958 

Employment Verifications for DOD civilians should be referred to the Work Number Client Service Center at (800) 996-7566.

Voluntary Allotments

A member of the military may establish a voluntary allotment of earnings and route money from the member’s pay to his or her dependents. Military rules strongly encourage members who are separated from their families due to their military service to establish voluntary allotments to provide for the financial support of their dependent family members. Because it is voluntary, the military member can generate this allotment even before a child support order exists in the case. A commanding officer will assist the member in obtaining the voluntary allotment forms. A commander can order a subordinate to obtain a voluntary allotment for the member’s family, but a commander cannot actually issue the allotment.

There are limited instances when this remedy may be useful in military IV-D cases. In discussions with the member (or his or her attorney) in cases where no support order exists, it is appropriate to point out that a voluntary allotment can help avoid the accumulation of unpaid child support during the order establishment process. Also, the member should understand that this procedure provides an official record of payments that will assist the member in obtaining proper credit for payments made prior to the entry of the order, in states that authorize retroactive support.

The voluntary allotment is not an enforcement tool that a caseworker can generate. Only the military member can initiate a voluntary allotment. The member can revise or terminate a voluntary allotment just as easily as he or she can start one. Due to this fact, when a child support order exists in a case, IV-D staff should not rely upon the voluntary allotment as the mechanism to divert child support from the member’s earnings to the member’s family.

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Involuntary Withholding of Military Income

There are three main methods for involuntarily attaching military income:

Garnishment

Federal statutory military allotment

The federal form, Income Withholding for Support (Form CS-89)

IV-D offices most often use either the federal military allotment or the federal form, Income Withholding for Support, to attach military income. The following income of a military member or civilian DOD employee is subject to garnishment or state income withholding to enforce a child support obligation:

Military active duty pay (basic pay and certain bonuses, but not BAH and BAS/Sep Rats)

Military reserve pay

Military retired pay

Federal DOD civilian employee pay and civilian retirement pay

Any other remuneration for employment

Veterans’ disability benefits are not subject to withholding unless the member has waived a portion of retired or retainer pay in order to receive such compensation. This situation occurs when a former service member waives part of his or her retired pay (taxable) in order to receive the disability compensation (nontaxable). When this happens, that part of the VA payment that is in lieu of the waived retired pay is subject to garnishment. But, if the member’s entitlement or disability compensation is greater than the member’s entitlement to retired pay, and the member waived all of the retired pay in favor of disability compensation, then none of the disability compensation is subject to garnishment or attachment.

An involuntary income withholding has priority over a pre-existing voluntary allotment. When initiating involuntary withholding, staff must send the appropriate form to the appropriate payroll processing center. The DFAS has local offices throughout the country that process payroll for the Army, Navy, Air Force, and Marines. The DFAS processes the pay for military members who are active duty, reserves and retired. It also processes the pay for civilian DOD employees and members of the National Guard who have been activated into federal service.

All involuntary withholding is processed by the DFAS office in Cleveland, Ohio. The DFAS does not process payroll for civilian employees of government contractors working on a military project. The Coast Guard processes its own payroll for active duty, reserves, and retired members.

Both DFAS and the Coast Guard prefer IV-D offices to use the federal income withholding form, which in Kentucky is the CS-89, rather than local state income withholding forms. The Coast Guard is unable to electronically receive income withholding orders, but is able to electronically route payments back to the states. Due to the DFAS payroll processing requirements, the cut-off date for implementing income withholding against an active duty member is the 7th of each month. This is true for both state

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income withholding and the federal statutory military allotment. The cut-off date is the 15th of each month for implementing income withholding against a military retiree. Military legal staff need up to 15 days to process a withholding request, therefore, it may take up to 60 days before a state disbursement unit will receive the initial payment.

Involuntary AllotmentsThe use of involuntary allotments is a means to enforce child support payments from active duty military personnel who are not under income withholding or when the maximum amount payable from the disposable income does not allow full payment.Federal law requires that each military branch and the Coast Guard establish involuntary child support allotments from the pay and allowances of active duty members, if the military member has failed to make payments under a support order in a total amount equal to the support payable for two months or longer in accordance with 42 USC 665.

The involuntary allotment is a separate and distinct income withholding remedy, specifically directed toward the military. A IV-D agency can use it to enforce both child and spousal support obligations owed by a member on active duty. The member must be in arrears totaling at least two months of support. The amount of the allotment is the amount necessary to comply with the support order. To initiate a federal allotment, a notice is required from an authorized person requesting the particular military branch to initiate the allotment.

An “authorized person” is defined as:

a IV-D agent or attorney, or

a court with authority to issue a support order or an agent of the court.

The notice can be as informal as a letter, but must include the following:

the military member’s full name

the military member’s SSN

a statement that the arrears are equal to or greater than the current child support owed for two months

a certified copy of the underlying child support order

the date the allotment should stop

a statement that the person writing the notice is an authorized person

The use of involuntary allotments is an effective enforcement technique, and is strongly recommended when the above conditions apply.

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Medical Support Enforcement

45 CFR 303.31(8) and (9) require states to “periodically communicate with the Medicaid agency to determine if there have been lapses in health insurance coverage for Medicaid applicants and recipients and to request employers and other groups offering health insurance coverage that is being enforced by the IV-D agency to notify the IV-D agency of lapses in coverage.”

45 CFR 303.32(a) and (b) require states to have laws requiring the use, where appropriate, of the NMSN to enforce a child support order requiring the noncustodial parent to provide health care coverage for his or her children through an employment-related group health plan. An exception is that state child support agencies are not required to use the NMSN in cases where the court or administrative order has specified or agreed to health care coverage that is not employer-based.

Termination of Military Enforcement Procedures

Upon learning of the termination of the child support obligation in a case where no arrears are owed, it is important that a IV-D office immediately take action to terminate any active collection activity on that case. The caseworker initiates a comprehensive review of the case when a support obligation is no longer enforceable. The purpose of the case review is to verify that all support obligations are satisfied, and to identify all active collection action in the case.

To release an income withholding order served upon DFAS, send a copy of the notice of termination by fax to DFAS. Upon receiving the termination notice, DFAS will promptly terminate the existing withholding order.

For more information regarding enforcement and withholding of income, refer to Prosecutors’ Handbook Administrative Enforcement Section 25.000, Judicial Enforcement Section 26.000 and Medical Support Enforcement Subsection 17.110. Also, refer to Operations’ Manual Other Enforcement Remedies Section 24.000.

13.090 WEB SITE RESOURCES

Military Trainer Guide : (http://www.acf.hhs.gov/programs/cse/pubs/training/working_with_military/): a tool to instruct caseworkers who process cases involving military members.

DFAS : (http://www.dfas.mil/index.html): general information.

DMDC : (https://www.dmdc.osd.mil/scra/owa/scra.home): This link will only state “active” or “not active.” It will not state the NCP’s location. An SSN is required to access the site.

Rapids Site Locator : (http://www.dmdc.osd.mil/rsl/owa/home) DEERS ID card issuance sites.

Obtaining Medical Support from Military Personnel : (http://www.dfas.mil/garnishment/childsupportagency/ObtainingMedicalSupportFromMilitaryPersonnel.pdf).

Tricare Web site: (http://www.tricare.mil/mybenefit/home/overview/Eligibility/DEERS/Updating).

LES :

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(http://www.dfas.mil/civilianpay/payandentitlements/leaveandearningstatement.html). Includes the form, which is an interactive statement, instructions and contact information; also, general pay information.

DFAS Garnishment Quick Guide: (http://www.dfas.mil/garnishment/childsupportagency/DFAS-QuickGuide-05-2007.pdf).

A Caseworker's Guide to Child Support Enforcement and Military Personnel : (http://www.acf.hhs.gov/programs/cse/newhire/employer/publication/military_quick_guide.htm)

Department of Defense Requests For Military Mailing Addresses: (http://www.defenselink.mil/faq/pis/PC04MLTR.html). Another site for addresses: https://ca.dtic.mil/dfas/s-garnish/garnishinquiry.htm.

The Web site http://www2.apobox.com/zip_restrictions.php allows you input a military address information and will provide you with the actual location of the facility/base/Embassy.

For information regarding review and modification of support, see KCSH Section 15.000, Review and Modification.

NOTE: Although the Caseworker’s Guide above, published in 2000, is still on the OCSE Web site and has relevant information, some of the contact information has changed since its publication. The contact information in this section is current as of its issue date.

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